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IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE HIGH COURT. CAPE TOWN)

CASE NO: A24/2009

DATE: 20 MARCH 2009

En the matter between:

SIBUSISO NDANDANI

versus

THE STATE

JUDGMENT

LA GRANGE, A J:

[1] This is an appeal against sentence only. The appellant, then 23 years old, was convicted by the Regional Court, George, on a count of murder. As the appellant was a first offender and the offence was committed in circumstances other than those referred to in Part 1 of Schedule 2 of the Criminal Law Amendment Act 105/1997 ("the Act"), the provisions of Section 51{2)(a) of the Act found application. This section requires the imposition of a minimum sentence of 15 years imprisonment in the absence of "substantial and compelling circumstances" justifying a lesser sentence. The Regional Court found that no such circumstances were present and sentenced the appellant to a term of 15 years imprisonment. The appeal to this Court is with the leave of the Regional Court.

[2] Although the appellant pleaded not guilty, he was effectively convicted on the strength of admissions (recorded in terms of Section 220 of the Criminal Procedure Act, 51 of 1977 - "CPA") which were contained in his written statement made in terms of Section 115 of the CPA (which admissions, inter alia, entailed that he admitted the content and veracity of a report of the medico-legal post-mortem examination which had been performed on the deceased, one Saniswa Nofugutyana, on 28 August 2007} and a document headed "Admissions in terms of Section 220 of Act 51/1977", which was subsequently presented to Court. Upon production of the aforesaid admissions the State closed its case without adducing any evidence. The appellant followed suit and the Regional Magistrate, quite correctly in my view, convicted the appellant of murder on the basis of dolus eventualis.

[3] The factual basis upon which the conviction was brought out can be summarised as follows: the deceased and the appellant were in a relationship which at the time of her death had lasted some six years. On the day in question, 26 July 2007, and whilst they were drinking beers at a local shebeen, the deceased starting accusing the appellant of "being a playboy with no respect." An argument ensued and the appellant and the deceased left for home. The appellant's initial version (as contained in his statement in terms of Section 115 of the CPA) of what subsequently transpired reads as foliows:-

“On the way she continued to insult me until we arrived at home. Even at home she continued with the insults and that is when f became angry and assaulted her with a water pipe - twice on the head and a few times on her body. When I saw that she was bleeding, I stopped assaulting her and we both went to sieep. The following morning I found out that she was dead. I did not have any intention to kiM her and 1 never foresaw the possibility of her dying as a result of my actions."

[3] On a subsequent date, when the matter was due to proceed to trial, the appellant caused the following further admissions (contained in the document referred to above) to be placed on record:-

"I wish to declare that although I did not have the direct intention to murder the deceased, I foresaw the possibility of her dying as a result of my assault on her; however, I reconciled myself with that possibility and continued to assault her."

[4] As explained above, the post-mortem report was admitted in the trial. The main post-mortem findings were that the deceased had suffered extensive contusions, abrasions and lacerations of the body (extending also over the head and neck area) and including numerous tram track bruising and abrasions of the body. Although subarachnoid haemorrhage of the brain was found to be present, there were no fractures of the skull. (No fractures of any kind were noted). The cause of death was found to be 'Multiple contusions and lacerations of the body and haemorrhage and aspiration of bJood." I shall not repeat all the post-mortem findings. It is quite clear that the deceased, who was 22 years old, of small build (being about 1,55 metres tall and weighing about 50 kilograms) was subjected to a brutal assault in which she received many blows or applications of force. Although blood was sampled for purposes of establishing the deceased's blood alcohol content, the results were not communicated to the trial Court.

[5] Although it is not altogether clear whether or not the appellant was employed at the time of the incident (fn his judgment on sentence the regional magistrate indicated that the appellant was employed and earning an income of R1 200,00 per month, but that he gave up the employment when he moved to George - whether this was before or after the incident is not clear), the appellant had favourable personal circumstances: he assisted his family by looking after his father, is an active member of his church, was not a violent person and had no previous convictions. A probation officer was of the opinion that the accused was a candidate to be sentenced to imprisonment from which he could be released into correctional supervision.

[6] It is apparent from the record that the appellant and the deceased had consumed an indeterminate volume of alcohol prior to the murder. It is also common cause that there was an element of continued provocation in the form of a continuing argument.

[7] When deciding the question whether "substantial and compeEling circumstances" that justify the imposition of a lesser sentence than the minimum sentence as prescribed by Section 51 of the Act are present, S v Maiqas, 2001(2) SA 122 (SCA) {which was said by the Constitutional Court in S v Dodo, 2001(3) SA 382 (CC) to be "undoubtedly correct") is still the leading authority. In paragraph 23 at page 1235B of Maiqas, it is explained that the prescribed sentence need not be "shockingly unjust" before it is departed from for "one does not calibrate injustices in a court of law". It is enough for the sentence to be departed from that it would be unjust to impose it.

[8] The "determinative test" (which was supported by the Constitutional Court in paragraph 40 of Dodo) for when the prescribed sentence may be departed from was expressed as follows in paragraph 26 (sub-paragraph 1) of Malqas and it deserves to be emphasised:-

"If the sentencing Court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence."

[9] The approach which has to be followed by the sentencing officer and the ever important role which the determinative test has to play in deciding whether it would be fitting to impose a prescribed sentence in given circumstances is aptly summarised by Nugent, J A In S v Vilakazi, 2008(4) SA 396 (SCA) at paragraph 18:-

"It is plain from the determinative test laid down by Malgas consistent with what was said throughout the judgment and consistent with what was said by the Constitutional Court in Dodo that the prescribed sentence cannot be assumed a priori to be proportionate in a particular case. It cannot even be assumed a priori that the sentence is constitutionally permitted. Whether the prescribed sentence is indeed proportionate and thus capable of being imposed, is a matter to be determined upon a consideration of the circumstances of the particular case. It ought to be apparent that when the matter is approached in that way it might turn out that the prescribed sentence is seldom imposed in cases that fall within the specific category. If that occurs, it will be because the prescribed sentence is seldom proportionate to the offence, for the essence of Maloas and of Dodo is that these disproportionate sentences are not to be imposed and that Courts are not vehicles for injustice."

[10] It is therefore made clear by the authorities referred to above that it is Incumbent upon a Court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of a particular case, whether the prescribed sentence is indeed proportionate to the particular offence. If the Court is indeed satisfied that a lesser sentence is called for in a particular case, thus justifying a departure from the prescribed sentence, then that Court is bound to impose that lesser sentence.

[11] In the instant matter, the Regional Magistrate emphasised the nature and the seriousness of the crime. The murder of the deceased constitutes a serious and hideous offence. A young life was cut short by a senseless act of violence which was ostensibly triggered by an even more senseless argument. In this regard the seriousness of the offence is furthermore compounded by the fact that the crime perpetrated by the appellant is in the context of domestic violence. The appellant apparently resorted to violence in a misguided attempt to chastise his life partner. This cannot be countenanced and the Court wifl not hesitate to show its dissatisfaction by imposing an appropriate sentence. As was emphasised in S v Berqh. 2006(2) SACR 225 (N)_P the notion or belief that our society will allow a man to chastise his wife is archaic and outdated and has no place in a society of which all persons, both male and female, are equal and enjoy equal protection before the law.

[12] As was, however, made clear in Malqas and emphasised ^m Vilakazi. the sentencing officer should be careful not to understand the prescripts of the legisfature as meaning that the prescribed sentence must be imposed in "typical cases¹¹ and may be departed from only when the case is atypical. As was pointed out by Nugent, J A in paragraph 19 of Vilakazi. the legislature did not explain what constitutes a typical case, nor how such a case is to be identffied:-

"All that is typical of cases that fall within a specified category is that they have the characteristics of that category. But for that, no case can be said to be typical'."

[13] in the instant matter, in my view, it ought to be taken into account that the actions of the appellant was to a certain extent influenced by the consumption of alcohol and was probably fuelled by the quarrel that arose between him and the deceased. Although the assault on the deceased was brutal and completely unjustified, it is clear from the post-mortem report that the assault did not cause any fractures of the skull of the deceased or, for that matter, any bony structure of her body. Judged on the contents of the report, her death was probably caused by the aspiration of blood. Viewed as such, the appellant's crime, although still very serious and reprehensible, does in my view not fall within the upper end of the spectrum of murders of the kind envisaged by Section

51(2)(a)(i).

[14] Although the aforementioned factors do not detract from the guilt of the appellant, they clearly have to be taken into account as circumstances which have a bearing when deciding whether the prescribed sentence is indeed proportionate to the particular offence. In this regard, Nugent. J A in Vilakazi was at pains to point out that the Constitutional Court (in paragraph 27 of Dodo) made it clear that "offence" in the context of the proportionality test "consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender." (See Vilakazi paragraph 1 5).

[15] Upon the reading of the judgment on sentence the Impression is gained that the Regional Magistrate disposed of the matter on the basis that the prescribed sentence would be imposed as a matter of course, unless the personal circumstances of the appellant disclosed it to be an exceptional case - without due regard to the determinative test and regardless of the question whether the prescribed sentence is indeed proportionate to the particular offence as explained in Maiqas. Dodo and Viiakazi.

[16] In my view, the seriousness of the criminal act perpetrated by the appellant, taking into account also the fact that he was relatively young and was a first offender with a relatively stable background, was of such a nature that the imposition of the minimum sentence of 15 years imprisonment was (in the words of Miller, J A in S v Mazeko. 1982(1) SA 99 (A) "grossly disproportionate to his desserts."

[17] I accordingly propose that the conviction be confirmed and that the sentence of 15 years imprisonment be set aside and be substituted with a sentence of 12 (TWELVE) YEARS IMPRISONMENT. I also propose that this sentence be ante­dated in terms of Section 282 of the CPA to 30 October 2008, being the date upon which the sentence was imposed by the Regional Magistrate.

LA GRANGE, A J

I agree, the appeal against sentence succeeds, the conviction is confirmed, but the sentence imposed by the magistrate is replaced by a sentence of 12 years imprisonment, antedated to the date of sentence by the magistrate.

LOUW, J

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